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ISCR Case 16-03219.a1 — CASE

ISCR Case 16-03219.a1denied

Case Headnote

ISCR Case No. 16-03219.a1

Nov 15, 2017· Hon. Michael Y. Ra'anan· appeal

Summary

A retired military member and defense contractor was denied a security clearance under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The denial stemmed from multiple DUI charges, which established a pattern of criminal conduct (J.1).

Further concerns arose from the applicant's continued alcohol consumption to the point of intoxication, which undermined claims of rehabilitation and indicated an ongoing alcohol-related issue (G.2.a). Despite participation in previous treatment programs, the applicant failed to demonstrate that these issues had been adequately addressed.

The appeal board upheld the denial, concluding that there was insufficient evidence to mitigate the security concerns associated with the applicant's history of alcohol-related offenses, even with positive character references.

Conditions Referenced

Disqualifying

G.2.araisedAlcohol-related Offenses
J.1raisedCriminal Conduct

Key Rule Quoted

“The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedNov 21, 2016
Answer filed—
Hearing heldAug 30, 2017
Decision dateNov 15, 2017

Cite For

Security Concerns Related to Alcohol Consumption Under Guideline G
Pattern of Criminal Conduct as a Basis for Clearance Denial Under Guideline J
Insufficient Evidence to Mitigate Security Concerns Despite Character References

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved an applicant seeking a security clearance after being denied due to concerns under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct). The applicant argued that the Judge's decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding it supported by substantial evidence and properly reasoned.

Appealed bythe applicant

Applicant representationAttorney

Judge belowRobert E. Coacher — denied the clearance

Decided ona hearing

Guidelines belowGuideline GGuideline J

What the Board reviewed

Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant argued that the Judge's adverse decision was arbitrary, capricious, or contrary to law.

Why the Board ruled this way

The Board found that the Judge's decision was supported by substantial evidence and articulated a satisfactory explanation for the denial of the security clearance. The Board concluded that the applicant's arguments did not demonstrate that the Judge's decision was arbitrary, capricious, or contrary to law.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Ra’anan — Chair
James E. Moody
William S. Fields

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline G; Guideline J DIGEST: Applicant cites to some Hearing Office cases that he believes support his effort to obtain a clearance. We give these cases due consideration as persuasive authority. However, each case must be decided on its own merits. Moreover, Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. Adverse decision affirmed. CASENO: 16-03219.a1 DATE: 11/15/2017 DATE: November 15, 2017 In Re: ----------------

Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 16-03219

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Ryan C. Nerney, Esq. The Department of Defense (DoD) declined to grant Applicant a security clearance. On November 21, 2016, DoD issued a statement of reasons (SOR) advising Applicant of the basis for that decision–security concerns raised under Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On August 30, 2017, after the hearing, Defense Office of Hearings and Appeals (DOHA) Administrative Judge Robert E. Coacher denied Applicant’s request for a security clearance. Applicant appealed pursuant to Directive ¶¶ E3.1.28 and E3.1.30. Applicant raised the followings issue on appeal: whether the Judge’s adverse decision was arbitrary, capricious, or contrary to law. Consistent with the following, we affirm. The Judge’s Findings of Fact Applicant has worked for a Defense contractor since late 2013. He retired from the U.S. military earlier that year. During his military career he deployed to the Middle East. Applicant was charged with Driving Under the Influence (DUI) on four occasions from early 1998 to mid-2015. Three of the occasions were during his military service. Applicant was required more than once to attend his service’s alcohol treatment program and, after his latest DUI while on active duty, he received nonjudicial punishment that reduced him from an E-7 to E-6, the grade at which he retired. His 2015 DUI resulted in a plea of guilty that resulted in a fine, probation, attendance at a DUI school, and installation of an interlock device on his car. Applicant continues to drink and become intoxicated. The last time he was drunk was Christmas 2016. He does not believe that he has an alcohol problem, and there is no evidence that he has received a diagnosis. Applicant enjoys an excellent reputation for honesty, loyalty, and trustworthiness. His character references recommend that he receive a clearance. The Judge’s Analysis The Judge stated that Applicant’s alcohol-related offenses were not infrequent, and he noted evidence that Applicant continues to drink to the point of intoxication. He cited to a paucity of evidence regarding the nature and substance of Applicant’s alcohol classes. He also stated that Applicant’s offenses in the military, with required class attendance, should have put him on notice that he needed to change his behavior, yet he failed to do so. The Judge concluded that Applicant has shown a pattern of criminal conduct. He stated that he could not conclude that Applicant had put such conduct behind him. Though citing to Applicant’s good military record and character evidence, the Judge concluded that Applicant’s security concerns were not mitigated.

DISCUSSION

Applicant cites to various pieces of record evidence that he believes the Judge either did not consider or that he mis-weighed. Applicant’s arguments are not enough to rebut the presumption that the Judge considered all of the evidence in the record. Neither are they sufficient to show that the Judge weighed the evidence in a manner that was arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 15-08711 at 3 (App. Bd. Aug. 24, 2017). Applicant cites to some Hearing Office cases that he believes support his effort to obtain a clearance. We give these cases due consideration as persuasive authority. However, each case must be decided on its own merits. Moreover, Hearing Office decisions are not binding on other Hearing Office Judges or on the Appeal Board. See, e.g., ISCR Case No. 16-01941 at 2 (App. Bd. Aug. 9, 2017). The Judge examined the relevant evidence and articulated a satisfactory explanation for the decision. The decision is sustainable on this record. “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). See also Directive, Encl. 2, App. A ¶ 2(b): “Any doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.”

ORDER

The Decision is AFFIRMED. Signed: Michael Ra’anan Michael Ra’anan Administrative Judge Chairperson, Appeal Board Signed: James E. Moody James E. Moody Administrative Judge Member, Appeal Board Signed: William S. Fields William S. Fields Administrative Judge Member, Appeal Board